Secret ACTA treaty can’t be shown to public, just 42 lawyers

Turns out that the Anti-Counterfeiting Trade Agreement (ACTA) will include a section on Internet "enforcement procedures" after all. And how many people have had input on these procedures? Forty-two.

ACTA has worried outside observers for some time by threatening to delve into issues not normally covered by "trade agreements." Topping the list are concerns about ACTA's possible use as a Trojan horse to shove tough Internet controls onto countries like the US at the behest of Big Content. It's been hard to tell exactly what ACTA will include, though, because the process has taken place in such secrecy and even when information has been released, the section relating to the Internet has been empty.

But the secrecy wasn't total. Knowledge Ecology International (KEI) found out in September that the US Trade Representative's office had actually been secretly canvassing opinions on the Internet section of the agreement from 42 people, all of whom had signed a nondisclosure agreement before being shown the ACTA draft text.

After filing a Freedom of Information Act request (the names of the 42 people were considered a matter of "national security" and were not released voluntarily), KEI yesterday revealed the list of people who have had access to the ACTA Internet provisions. Here are the first 32 names, all of them people outside of USTR:

A further 10 people who have seen the draft are regular members of USTR advisory boards:

Anissa S. Whitten, Motion Picture Association of America, Inc.

Eric Smith, International Intellectual Property Alliance

Neil I. Turkewitz, Recording Industry Association of America

Sandra M. Aistars, Time Warner Inc.

Steven D. Mitchell, Entertainment Software Association

Thomas J. Thomson, Coalition for Intellectual Property Rights

Timothy P. Trainer, Zippo Manufacturing Company

Jacquelynn Ruff, Verizon Communications Inc.

John P. Goyer, US Coalition of Service Industries

Mark F. Bohannon, Software and Information Industry Association

It's a motley collection. While the continued secrecy of the process remains troubling, the list actually represents a wide swath of views. Big Content is well-represented; if stakeholders like the RIAA and MPAA don't appear often on the first list, that's only because they have a permanent connection with USTR and regularly get to advise the agency on crafting its trade policies.

But many of those on the top list don't support much in the way of Internet "enforcement" of IP law, not if that includes items like filtering or graduated response. Bill Patry, for instance, is Google's top copyright lawyer and has just written an entire book lambasting the content industries in no uncertain terms for their utter lack of innovation. Michael Petricone of CEA regularly appears at conferences opposing many content owner ideas, and Jonathan Band is a DC lawyer who regularly represents library associations in copyright proceedings. Public Knowledge and CDT both received invites, and lawyers for Dell, Intel, and eBay are generally not excited about content-owner-protection proposals.

On the other hand, copyright's eminence grise, Steven Metalitz, is also on the list; Metalitz was last seen in these pages telling the Copyright Office that consumers have no right to be upset after buying DRMed music from a store that goes out of business and takes its DRM servers offline.

According to Jamie Love of KEI, however, the whole thing smacks of corporatism. Sure, the corporations may be on different sides of the issue, but is the public actually being well-represented here?

"We were told that everyone who needed to see the documents has seen them," he writes. "Outside of Public Knowledge and CDT, everyone who received the documents was representing a large corporate entity."

ACTA negotiations resume in early November in Seoul, South Korea, where (in its own words) "USTR will be pressing for provisions that strengthen the ability of governments to deal with the serious issue of Internet piracy."

So, I'm still confused. What can a treaty like this do: can it override any and all US law and court decisions about 'fair use' or whatever? Eliminate fair trials completely? Summary execution of file sharers?...

All approving parliaments will have to see it before voting on it, naturally, but they can only say yes or no. Voting no is very hard at that point, because the treaty has been in the works for years at that point, and will probably include several things that are deemed very important.

Originally posted by mikepaul:So, I'm still confused. What can a treaty like this do: can it override any and all US law and court decisions about 'fair use' or whatever? Eliminate fair trials completely? Summary execution of file sharers?...

Treaties ratified by the US Congress have the force of law - they can override anything not in the constitution.

Pretty sure treaties have force of law, and judges/legislature are very reticent to overturn them, because it makes all the other countries mad. Getting bad ones fixed is not as "easy" as running a lawsuit up to the supreme court, or lobbying for a new law.

I don't see how this can be allowed to be secret. Someone could make a case (maybe not a good one) for having some treaty provisions secret for security reasons, but copyright and piracy have no legitimate reason to be secret. The only reason they would be doing it this way is because they know it would be shot down before it got off the ground if it were public.

Maybe I'm cynical about any process that seems unnecessarily cloaked in secrecy, but why does this secrecy just sound like security-through-obscurity to me? Professional counterfeiters have always found a way.

If they truly believed their actions were for the benefit of everyone, they would have no reason to hide. They would hold their heads high and proudly expound their beliefs to anyone who asked. That they keep it hidden is all the evidence needed to show they are not working in anyone's interests but their own.

Once it gets into Congress, it's too late. The text will already be there and will not be modifiable. They (the committee that is writing this treaty) will stick something like child porn in there so nobody will veto the treaty once in Congress.

Don't you know? Privacy is only for the megacorporations. After all, "he who has the gold rules". The golden rule for this age it seems. Now us serfs need to be compliant or they will hit us with a new secret law they just invented.

"ACTA negotiations resume in early November in Seoul, South Korea, where (in its own words) "USTR will be pressing for provisions that strengthen the ability of governments to deal with the serious issue of Internet piracy."

Good luck on that. Internet piracy is here to stay and no amount of law or punishments will ever stop it. What a bunch of idiots. These corporate asshats actually think that they can stop any piracy at all. All there laws and treaties will end up doing is screw the common person who has done nothing wrong at all.

Originally posted by axia777:Good luck on that. Internet piracy is here to stay and no amount of law of punishments will ever stop it. What a bunch of idiots. All this corporate asshats actually think that they can stop any piracy at all. All there laws and treaties will end up doing is screw the common person who has done nothing wrong at all.

Indeed.

It's absolutely absurd that the public gets no input on this whatsoever, and it's merely another propaganda treaty made up by a bunch of greedy corporate suits who are too stupid to find a business model that works.

Funny, there was a time when I copied software/music/etc because I was too poor to afford it legitimately. There was an even longer time that I paid for these things because it was easier than piracy. With governments commiserating with the copyright mafia to enact crap like this -- I'm enraged. Things like this are going to have the opposite effect with many people.

Myself, I'm tempted to pirate everything (except indie music, not that I listen to much of that), no matter how much more work it is than buying a legitimate copy. If the big boys want to give me the finger, I'll be happy to return the favor.

Originally posted by aquasub:Once it gets into Congress, it's too late. The text will already be there and will not be modifiable. They (the committee that is writing this treaty) will stick something like child porn in there so nobody will veto the treaty once in Congress.

Yeah. Sounds like the political equivalent of the bad loans bundled with good loans bonds (you know what I mean, I don't know the exact terminology) that caused the financial collapse last year.

Bundle loads of pro-corporation steamroller-over-the-plebs fantasies in with things that can't be voted no to, thus offloading some awful restrictive laws upon citizens who have had no say in things.

Ugh. Corporatism is evil, it is the new royalty, and the people need to have a civil war against corporatism to regain control of our lives.

It's absolutely absurd that the public gets no input on this whatsoever, and it's merely another propaganda treaty made up by a bunch of greedy corporate suits who are too stupid to find a business model that works.

This really goes against the legal grain. One of the tenets of US law is, "Ignorance of the law is no excuse." In other words, every citizen is expected to know the laws that affect them. How can citizens possibly obey something that is crafted in secret?

Even more troubling is the idea of a secret law containing a retroactivity clause - making something illegal that nobody even saw coming, as a "gotcha." It's one thing for people to see a pending bill, say, "Hmm, I should stop doing this before it's illegal." It's another to create instant criminals... It's not incredibly likely, but I don't think I'm being paranoid by considering the possibility.

The whole ACTA process is bizarre, and I'll be interested to see what the reaction will be when it's made public. How many governments will just flat-out refuse to ratify it? If a large number do, it'll basically be a pointless endeavor. I'd be more worried about this, but if the Canadian government makes an attempt to pass it, we can rely on the opposition parties to bring down the government and trigger an election. Worked great when they tried to pass a Canadian DMCA. Minority governments are a lovely thing.

Originally posted by [S]Replicant:Myself, I'm tempted to pirate everything (except indie music, not that I listen to much of that), no matter how much more work it is than buying a legitimate copy. If the big boys want to give me the finger, I'll be happy to return the favor.

"...telling the Copyright Office that consumers have no right to be upset after buying DRMed music from a store that goes out of business and takes its DRM servers offline."I'm sure I'm going to get a huge backlash from my reply, but I agree with this statement 100%.

Now, before anyone jumps the gun, please note my position is on consumer's choice to select this option, rather than do without.

It's the same position I have against people who buy iTunes apps and get mad at Apple for removing them. Think about this, consumers: Why the hell are you supporting this crap with purchases?

The ultimate slap in the face is consumers not buying, and this becomes important as ACTA continues. As a consumer, I'm getting pretty damn tired of companies trying to tell me I rent, rather than own, my legally purchased content.

Just as the DMCA circumvented copyright, so too shall ACTA circumvent innovation. In the list of names, it's no surprise the majority are those who work for businesses trying to control what consumers can do.

If ACTA does get implemented, I think it's time both consumers and anti-ACTA persons stand and up deliberately do everything against ACTA's rules. Start hosting music, videos, books, and everything else. Everywhere. One or two sites just isn't going to cut it. Everyone needs to partake.

Then, the industry will have *no choice* but to concede defeat, rather than trying to tell me my words were posted on a news site under fair use but I get sued for doing the same.

Yes, piracy is an issue, but it shouldn't be. I'm glad William Patry's on the list, but he's the minority in that group. Despite all his reasoning to the contrary, the "*IAA's" will certainly over-voice any intelligent opposition he'll present.

In our history, copyright has always been changed to protect the pockets of those who don't sing, write, act, author, or otherwise contribute to content.

The only reason they would be doing it this way is because they know it would be shot down before it got off the ground if it were public.

This, and the fact that secrecy allows the US to demand things that the US public would find abhorrent, without anybody finding out it was them.

quote:

This really goes against the legal grain. One of the tenets of US law is, "Ignorance of the law is no excuse." In other words, every citizen is expected to know the laws that affect them. How can citizens possibly obey something that is crafted in secret?

You've got the wrong principle. This is more along the lines of "no legislation without representation." They create legislation in a corporate-controlled environment without public input and then present it to Congress as a done deal which, if not passed, followed, and never repealed, creates an international diplomatic incident.

Screw. That. How about we make the US trade representative an elected position with yearly elections?

The problem is that many so-called "representatives" appear to forget who they actually represent. Furthermore, they tend to only 'consult' those they represent once each election cycle...

The list of consultees seems reasonable to me, as a list of corporate representatives. There's a notable lack of public-interest groups though, including the EFF, librarian's groups, etc... so it IS very one-sided in that regard.

The more fundamentally troubling aspect is the very idea that the concept of secret government is being extended from protecting the *public* by means of providing for national security, to protecting private, corporate interests essentially against wider public interest, via this new ACTA trade agreement. I think those politicians who have worked to establish the fundamentally secretive and unaccountable nature of this trade agreement need a firm booting out of public office. This is bad government indeed.

"We were told that everyone who needed to see the documents has seen them," he writes. "Outside of Public Knowledge and CDT, everyone who received the documents was representing a large corporate entity."

And...a corporations bottom line is its profit.

I guess Obama's 'transparency' in government concept does not extend to the representation of the people when big content and corporations are involved.

Originally posted by mitEj:Secret Laws are bad laws. If a law has to be hidden it should not be at all.

The law itself won't be secret at the end of the day. The parties who are finalizing the treaty are just going to great lengths to keep the draft language under wraps until the last possible moment. Their reasoning is that if the public has a chance to see and debate controversial provisions, there might (will) be opposition and bad press and they may be pressured to make changes. They don't want that, so the strategy is to suppress debate until the treaty becomes so "inevitable" that it's too late to roll back lousy provisions.

quote:

Originally posted by mpat:Treaties ratified by the US Congress have the force of law - they can override anything not in the constitution.

Indeed. Take the UN Convention Against Torture, for example. Ronald Reagan signed it in 1988 and the U.S. Senate ratified it in 1994. CAT has the force of law, including provisions that "The State Party in territory under whose jurisdiction a person alleged to have committed any offence ... is found, shall ... submit the case to its competent authorities for the purpose of prosecution" (Art. 7 (1)) and "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" (Art. 2 (2)).

Of course, President Obama has signaled that international treaties such as CAT are quaint and optional, so I think we can all rest easy about ACTA. Even if filesharing is outlawed, I'm confident Obama will let violators off the hook - after all, we must "look forward, not back."

the rich and powerful take care of themselves everyone's expense. what else is new...

recall the Simpson's episode about the advertising icons that came to life and started destroying the city. seeking help they go to an advertising salesman who tells them "the funny thing about advertising, is it loses its power when you don't pay attention to it". they do and the ad monsters die.

Similar tact to use here. Don't buy crap anymore. Limit every purchase you make to necessities and by local as often as possible. Of course, even local stores need to get stock from some big companies, but this approach will still massively damage and weaken the system. No violence needed.

The downside is it will hurt the economy too, but the consumer culture is a cancer that needs to be burned out of society at any cost.

Of course, President Obama has signaled that international treaties such as CAT are quaint and optional, so I think we can all rest easy about ACTA. Even if filesharing is outlawed, I'm confident Obama will let violators off the hook - after all, we must "look forward, not back."

If you think that Obama gives a flying fuck one way or the other and cares about your or other individual's well being in the face of government regulation then your are sadly a very deluded man.

While it is true that the Senate must ratify a treaty for it officially to become United States law, only the President needs to sign a treaty for it to become de facto law -- that is, for his administration to implement it as much as possible at the executive level. In fact, very few treaties a President has signed have ever been ratified by the Senate, and yet the provisions in hundreds of them are being followed or enforced every day by executive-branch departments.

(And as a matter of fact, this tactic has often been very useful to the U.S., as we can then stop enforcing these unratified treaties at whim. It can also be useful to Senate members for political reasons.)

Originally posted by mikepaul:So, I'm still confused. What can a treaty like this do: can it override any and all US law and court decisions about 'fair use' or whatever? Eliminate fair trials completely? Summary execution of file sharers?...

Treaties ratified by the US Congress have the force of law - they can override anything not in the constitution.

Treaties only have to be ratified by the Senate, and while they're not "supposed" to override the rules of the Constitution, treaty obligations supersede all other state and federal laws. So as the rules could still be kept secret, and there's nothing in the Constitution AGAINST approving unconstitutional laws it will be a hard nut to crack.

I think somebody should push for Laurence Lessing to review this also. He's one of the few non-professional lawyers granted permission to argue before the Supreme Court so he's more qualified than most of the list and a proponent of keeping cultural heritage free but still respecting the laws Congress passes.

"According to Jamie Love of KEI, however, the whole thing smacks of corporatism. Sure, the corporations may be on different sides of the issue, but is the public actually being well-represented here?"

That's exactly what I was going to talk about. Sure, we have Google "Don't Be Evil" and some others (which despite the talk, still can't be trusted to fight for citizens), but where is the real PUBLIC representation aside from a couple of relatively small and weak non-profits?

This is nothing new. Time and time again, the people are kept away from getting a seat at the table, while the corporations and elites run the show and slap each other on the back for a job well done. All the while, if any hooplah is made of the situation, the corporate media lambasts dissenters as "nutjobs," "crazies," "fringe groups," "anarchists," and "terrorists."

Originally posted by Porter Doran:And as a matter of fact, this tactic has often been very useful to the U.S., as we can then stop enforcing these unratified treaties at whim. It can also be useful to Senate members for political reasons.

For the record, even Bona Fide ratification is no guarantee: See NAFTA and WTO.

Either this treaty is so ridiculously draconian that the public outcry would hobble any chance it has of going anywhere... or it's one of those cases where it will be incrementally incorporated into national law via a series of steps?

It's just such a slimy way of doing things I can't see how anyone would want to have their name associated with it.

"Turns out that the Anti-Counterfeiting Trade Agreement (ACTA) will include a section on Internet "enforcement procedures" after all. And how many people have had input on these procedures? Forty-two."

Having known that the answer is 42 for years, we FINALLY find out what the question is. Majikthize will be very upset upon hearing that the question has finally been revealed.

Of course, President Obama has signaled that international treaties such as CAT are quaint and optional, so I think we can all rest easy about ACTA. Even if filesharing is outlawed, I'm confident Obama will let violators off the hook - after all, we must "look forward, not back."

If you think that Obama gives a flying fuck one way or the other and cares about your or other individual's well being in the face of government regulation then your are sadly a very deluded man.